Unit 4 - Dismissal

Question 1

Which information should be gathered prior to the first consultation?

Answer 1

1. The sector/industry in which the dispute arose
   - The CCMA will only have jurisdiction if there is no BC, statutory council, or accredited agency or an agreement to follow private DR procedures
2. Where and when did this dispute arise?
   - Determine which council will have jurisdiction.
   - You have 30 calendar days to refer a dispute to a council or the CCMA
3. Is your client a member of a trade union?
   - Make sure only one party refers the dispute to the council or CCMA
   - No legal rep is allowed during conciliation and you client can only be represented by a fellow e/e or TU rep
4. Did your client follow all the internal procedures to resolve the dispute?
   - The CCMA or a council will only try to resolve the dispute if all the internal procedures were followed and there is still a dispute

Question 2

What happens during the first consultation?

Answer 2

1. Complete the prescribed referral form. The client must sign the original
2. Get all the relevant information regarding the procedures that were followed and the reason for the dismissal
3. Inform the client that the council or CCMA will send a notice to him and NOT TO THE ATTORNEY by registered post with a case number and a date for conciliation or con/arb
4. Explain the procedure or time frame for the client as set out in the LRA (ss 135 - 136)

Question 3

What happens after the consultation?

Answer 3

1. Serve a copy of the referral form on the other party and attached the proof of service on the original and serve on the council or the CCMA
2. Proof can be a copy of a registered slip from the Post Office, a copy of a fax confirmation slip, a copy of a signed receipt if delivered or a signed statement confirming service by the person delivering the form
3. Gather all relevant documentation and evidence like the notice of the disciplinary hearing, the charge sheet, the disciplinary code and procedure of the e/r, any statements and any other relevant documentation
4. Request the minutes of the internal disciplinary hearing from the other party

Question 4

Discuss the dispute resolution process

Answer 4

1. The conciliation
   a. It is an informal procedure where parties can try to resolve a dispute by means of negotiation and with the held of a commissioner
   b. Conciliation must take place within 30 days from the date of referral
   c. An e/e can only be represented by a fellow e/e or a TU rep
   d. If the 30 days lapsed or if the parties cannot resolve the dispute the commissioner must issue a certificate which states the nature of the dispute and that it could not be resolved through conciliation
2. Referral for arbitration
   a. If the conciliation was a con/arb the arbitration will start immediately after the conciliation
   b. If the conciliation was only a conciliation the e/e must refer the dispute for arbitration within 90 days from the date of the conciliation on the prescribed form of the council or CCMA, attached the conciliation certificate and serve notice on the other party